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Sexual Orientation, Choice and Rights

Really interesting article taking seriously the possibility that sexual orientation might be fluid rather than fixed (as Lisa Diamond has argued in the case of women), and asking what this claim may mean for gay rights arguments. One worry, of course, is that it might lead people to endorse ex-gay therapy. (Though, as the article points out, “changeable” doesn’t mean desirable to change, nor does it mean changeable by ex-gay therapy.) Another is that it might lead some to suggest that gay people don’t deserve equality. (Though, as the article points out, religion is changeable and yet freedom of religion is strongly protected.)

“We live in a culture where people disagree vehemently about whether or not sexual minorities deserve equal rights,” [says Diamond]. “People cling to this idea that science can provide the answers, and I don’t think it can. I think in some ways it’s dangerous for the lesbian and gay community to use biology as a proxy for that debate.”

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24 thoughts on “Sexual Orientation, Choice and Rights”

I’ve always been worried about the standard line that sexual orientation is innate and immutable in all cases. It seems to me a noble lie–and the nobler the lie the more likely it is to backfire. This line bought acceptance for same-sex relationships but at the cost of tacitly accepting that there was something prima face undesirable about being gay–that it was something that had to be EXCUSED by showng that it wasn’t a free choice. Maybe this was the pragmatic policy but it failed to address the core issue: what reason do you have for condemning any consensual sex?

And it was just offensive. Suppose, by analogy, a movement had made the case that some property of a disadvantaged minority was something they couldn’t help and so something they couldn’t be blamed for–like, say, atheism. Those atheists just can’t see divinity–it’s all genetically determined, like colorblindness. So you can’t blame them for not believing in God: they’re just physiologically wired up differently from you and me.

This is offensive. I’m not an atheist and I’m not gay, but I can imagine how offended I’d be if bien pendants treated religious disbelief or sexual preference as something that had to be excused. Sorry: there is nothing even prima facie wrong about being either an atheist or a gay person. It isn’t something for which people need to be excused.

First two comments: yes.
The use of the phrase “immutable”, esp. in legal contexts, has led me more than once to think “I don’t think that word means what you think it means”. Sex, as in sex discrimination, is treated as “immutable”. Except it’s not. One can get a sex-change operation. But no one dares say, “therefore, firing women philosophers is okay!”

Microbiologist Anne Fausto-Sterling argues relatedly in _Sexing the Body_ that one’s identity, and one’s body, are not stable, and that to assume these are fixed and unchangable things is to misunderstand nature and embodiment in basic ways. She says this as she identifies as a lesbian, and she is not a fan of compulsory heterosexuality.

I take her example seriously, and try to think accurately and clearly about what it means to be a body and an identity, without fear of what heteronormative coercive types will do with these facts. After all, someone bent on heteronormative coercion will be bent on it no matter what the facts are. If it’s a fixed bit of one’s genes or organs, then they can argue to just “rectify” the fixed structure and make us all “normal.” If it’s not a static structure, they can argue for therapy to bring our dynamic bodies around. Ultimately, the determination some exhibit to make others conform to their ideas of rightness or normalcy renders the facts regarding sexual orientation, whatever they may be, moot.

I remain committed to seeking the truth. If we have dynamic bodies, so be it. Let us embrace that high likelihood, and then, fight those who would use it for nefarious ends on ethical and sociopolitical grounds.

I’ve always thought that the appropriate analogy to sexual orientation (in terms of change and political policy) was religion. Of course someone *can* change their religion, but for many this involves giving up many things that they may not want to give up and it’d be wrong to ask them to give up. So, even if the majority thinks that their choice of religion is mistaken (and that raising children in that religion is not ideal for the children), we still don’t force folks to change religions.

The article that led me me to tune out all discussions regarding the Choice/Not Choice issue was Joyce Trebilcot’s “Taking Responsibility for Sexuality”

Really, the best thing would be therapy to make everyone bisexual to maximize utility. The more we want and can get the better off we are. So, assuming we can get both male and female sex partners, we’re better off if we can enjoy both.

I’m actually serious. I live in Southern California, on the water. But I don’t care for the beach. That’s a shame. I’d be getting ever so much more utility if I liked it. When I first moved here I tried to acquire the taste, but I couldn’t. So I decided the hassle of trying to acquire the taste for the beach wasn’t worth it. But if I could, I’d be better off. Cultivating our tastes for attainable goods puts us in line for more utility.

So all other things being equal it would be good if all of us had the widest possible range of satisfiable sexual preferences.

Perhaps an even better analogy than the protection of free exercise of religion is speech, since expression is a very basic and very much embodied function. The fact that one’s expressions can change over one’s life does not in any way lead to the conclusion that it is appropriate to strip one of a guaranteed right to free speech. I think the right to free speech is one of the single best things about the U.S. Constitution, acknowledging, as it does, the centrality of liberty to hold one’s own perspective, and express it to others, to a flourishing good life for most of us.

I enjoy reading the novels of John Dos Passos. The man went from being a Socialist to being a reactionary right-wing idealogue, but the fact that he radically changed, inwardly and outwardly, didn’t then generate a sudden new justification for censoring his books. How does the fluidity of the expression of a basic good make it suddenly unworthy of protection AS a basic good? That’s just silly.

I think the analogy to speech rights has some problems but is worth exploring in more detail. In exploring it, probably the most important thing to bear in mind about the right to free speech is that it is a negative right to be free from undue government interference. With extremely narrow exceptions, private parties are, at least in the U.S., (i) free to discriminate against you based on the content of your speech, and (ii) under no obligation to lift a finger to facilitate your self-expression.

It also occurs to me that Diamond’s observation that “We live in a culture where people disagree vehemently about whether or not sexual minorities deserve equal rights” is arguably tendentious. I think relatively few people in these debates assert that anyone doesn’t deserve equal rights; what people tend to disagree vehemently about is what constitutes equal rights. (Just for example, over whether traditional marriage laws actually deprive any individual of a right on the basis of sexual orientation.) It largely depends on the terms in which the rights are framed.)

Nemo, I suppose that’s true, but it seems to me to be very misleading. You could say the same about anti-miscegenation racists, after all. But to say that they wanted everyone to have equal rights is… a strain. And similarly I think Diamond is right, notwithstanding what anti-gay bigots say about their own views.

Loving, I take your point, but I’m not sure that you can say quite the same thing in the case of anti-miscegenation, because the viewpoint we’re referring to depends at least in part on the *facial* neutrality of traditional marriage laws with respect to sexual orientation (whereas anti-miscegenation laws incorporated racial classifications). And while Diamond may be right, what I was remarking on was that her statement seemed at first glance to be a neutral statement about the existence of the disagreement (which is how I suspect she meant it), when on second inspection it seems more like just a restatement of one side of the disagreement.

This is a topic I’ve been thinking about a lot recently. I think that the general belief, for a while, that sexuality is innate and that people are born with a predisposed orientation, has been extremely beneficial to LGBT movements. A lack of choice makes it difficult to assign moral accountability. However, I don’t believe that this is true of sexuality. An individual’s sexuality may change over time, perhaps gradually or suddenly. I’m willing to believe that there could be a certain amount of control over attraction too. Not for everyone, but some. That would include a lot of the radical feminist crew (who I tend to disagree with a lot on most things, but to use them as an example) who claim that they have chosen to remove male presence from their lives and be attracted to women instead.

In this society at this moment, though, I think it is now more harmful than helpful to perpetuate the idea that sexuality is innate and immutable. It invalidates a whole load of experiences and relationships, and also gives fuel to the usually terrible “bad science” of searching for gay genes and biological causes of orientations. I call it “bad science” because as its been practised so far, it tends to start with bad and narrow definitions of sexuality, and any findings or even aims of studies have been seriously over-exaggerated or misrepresented. That’s not to say that there couldn’t be a biological cause, or even a non-biological cause, but from what I’ve seen and read I’m finding it harder and harder to believe.

To address a different point, I said earlier that presuming a lack of choice in regards to sexuality made it difficult, and impossible in most cases, to assign moral accountability. Now, if someone is not accountable, then they should be protected by law and given equal rights. But this is wrong. Someone is no more “morally accountable” than if they chose to be attracted, and therefore have a relationship with someone of the same gender than if they did not have a choice in their attraction. The moral status of that relationship or desire does not change so long as it is consensual. The real issue here is why we consider sexuality to have a moral status at all*. If we have progressed enough to realise that consensual sex between adults is not a moral issue, then the question of whether individuals should be protected from discrimination is a no-brainer.

As for the endorsement of ex-gay therapy, I’m not actually sure where I stand. It’s a bit of a difficult thought experiment to imagine a world without, in this case, homophobia. But if we could, and there was still people, for whatever reason, did not like the orientation of the sexual desires they had, would it be an infringement of their freedom to deny them the opportunity to change it? If they were genuinely happier with a different orientation, would there be any harm? I do find it hard to believe that should internalised homophobia, or other fears, be properly addressed, that people who still seek ex-gay therapy but I don’t have the authority to claim that strongly enough to hold as truth.

*I’m aware this is a problem with sexualities not gender-orientated like paedophilia, BDSM fetishes, bestiality etc. Especially with paedophilia, many would welcome therapy which could alter an individual’s sexuality to not desire children anymore. Which -does- make it a moral issue, with strong moral motivations behind it.

@Nemo (not me, but the one in #15): With regard to your suggestion that traditional marriage laws restrict are not neutral with regard to sex, that is far from clear. At least in the juridical sense of what it means for a law to be sex-neutral, there is substantial authority for the proposition that they are. This analysis has been carried out at length in a number of courts; just about all of which have concurred in the argument that traditional marriage laws treat both sexes equally (someone of either sex can enter into a traditionally-defined marriage). (Quite often this is accompanied by an analysis of why analogies to anti-miscegenation laws are inapposite.)

Again, this just goes to show that whether rights are “equal” can depend largely on the terms in which a right is framed, as I suggested in an earlier post.

With regard to your second point, I’m not sure that even if traditional marriage laws were sex-discriminatory, that fact in conjunction with the fact that they are about marriage would be sufficient to demonstrate that they must not be neutral (at least facially neutral) with regard to sexual orientation. I don’t think I followed that logic.

But at any rate, I was not myself asserting that traditional marriage laws are neutral in every sense with regard to sexual orientation (though it does seem to me that arguments that they are not *facially* neutral are vulnerable), just that disagreement over this question is at the heart of the broader disagreement over whether such laws provide “equal rights” or not.

First of all, my apologies for calling myself ‘Nemo’! I must have got distracted when I was typing in my pseudonym.

Anyway, by ‘not neutral with respect to sex’ I didn’t mean that marriage laws discriminate in favor of one sex or another. (That’s a difficult topic, obviously.) I meant that they are not neutral in the same sense that anti-miscegenation laws are not race-neutral. It’s just a simple point, which I’m sure you didn’t mean to disagree with.

There really isn’t much more to say about this. All I mean to be saying here is that even though there may be some way of parsing ‘equal rights’ to make it come out that anti-gay marriage advocates are still in favor of equal rights, it’s still perfectly reasonable to conceive of the difference between my view (and I imagine the view of pretty much everyone who reads this blog) and theirs as a difference over whether gay people should have equal rights, just as the dispute over racial marriage laws in the sixties was over equal rights.

I see what you mean. It does seem to me, though, that regardless of the sense in which the marriage laws could be said not to be neutral with respect to sex *or* to sexual orientation; I think it must not in either case be in the same sense that anti-miscegenation laws were not race-neutral. (For example, the statute in question in Loving v. Virginia expressly placed different restrictions on whites.) I suspect that is a big part of why legal arguments based on analogies between them have proven to be so vulnerable.

With regard to your second paragraph, I concur that it’s reasonable to conceive of the difference between the two viewpoints as a difference over whether gay people should have equal rights (though I would hesitate to say it’s the *only* reasonable characterisation of the difference). But it’s still tendentious inasmuch as (with perhaps a few exceptions) only someone who already held the first view would characterise it in that way.

Of course there’s nothing wrong with Diamond saying that – I just thought that *she* thought (or intended her audience to think) that in that sentence she was actually characterising the dispute in a neutral, detached (and not merely a reasonable) way.

“(For example, the statute in question in Loving v. Virginia expressly placed different restrictions on whites.)”

I’ll take your word for it (I didn’t remember that), but Warren’s opinion places no weight whatsoever on those different restrictions. So I think you’re mistaken — the neutrality with respect to race (sure, we won’t let coloreds marry whites, but we won’t let whites marry coloreds either, so it’s equal) is the same as the neutrality with respect to sex (oh, we won’t let anyone, hetero or gay, marry someone of the same sex). In each case, the state will not let a person marry the one they love, purely because that person is not the right race/sex.

Under that statute, a white person would be punished for marrying anyone but another white person, whereas a black person could marry a person of any race other than white without penalty, so I think there actually was a technical disparity of a somewhat different sort there.

As I’ve previously mentioned, so much of this depends on how you frame or characterise the rights in question. If you characterise the right as a right to marry the person you love, the argument makes a lot more sense. However, there are some problems with that characterisation.

For one thing, the law is also neutral with respect to love. The law does not inquire, and I think you could say does not care, whether someone is marrying the person they love. Indeed, paradoxically, one could make an interesting argument that the state gains more from legally binding a couple who *don’t* necessarily love each other, because some of the major “incentive problems” (as economists like to say) that characteristically arise between heterosexual couples – which incentive problems civil marriage law has evolved to regulate – are less acute where the couple has very deep emotional ties.

So while marriage rights often coincide happily (from the couple’s perspective at least) with enabling someone to marry the person they love, and will coincide even more with that ability in places where same-sex marriage is permitted, that doesn’t actually describe what the right is. It’s at best incidental (legally speaking) to the right, despite the close contemporary association of the two things in most people’s minds. So I’m not sure that we can rely on that characterisation of marriage rights in an equal treatment analysis.

Nemo, I said I’d take your word on the content of the statute. As I noted, that was no part of Warren’s reasoning. So whatever the statute said, the problem with it was not that it allowed black men to marry Indian women but did not allow white women to marry Pakistani men.

I think you’re focusing on something irrelevant. True, I said “person you love”, but I didn’t say anything that makes a requirement to love the person you marry relevant. (I was, of course, speaking of the right to marry the person you love.) Bur replace ‘love’ with ‘choose’, if you like.

I think you’ll find that it was a part of Warren’s reasoning (“The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy”, he wrote).

Fair enough re “love” vs. “choose”. But I’m not sure that that actually advances the point. Is it really that much more accurate to say that the nature of the legal right conferred by the law is the right to marry whom we choose?